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The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database.

Please cite the abstract as follows:

Abstract of the German Federal Constitutional Court’s Order of 23 January 2017, 2 BvR 2584/12 [CODICES]

Headnotes (non-official):

1. The precedence of application of European Union Law does not bar regular courts from reviewing whether a conviction by a foreign criminal court – registered according to Art. 5 of the Council Framework Decision 2009/315/JHA – is the result of proceedings which satisfy procedural minimum standards.

2. Art. 19.4 of the Basic Law provides for claims by individuals to an effective judicial review, that means to a conclusive assessment of the subject matter of the respective proceedings.

3. If and when a court is called upon to review the decision on an entry into the Register with respect to its compatibility with the constitutional minimum standard, it may not narrow done its assignment to review the case by simply adopting the findings of the judgment even though the applicant’s submission gave a specific cause for review.

Summary:

I.

In December 2010, the complainant was sentenced to a fine as well as a one year prison term subject to probation by a criminal court in Seville (Spain). The prison term was entered into the Federal Central Criminal Register (hereinafter: the Register). The complainant only learned of that entry when he requested a copy of his criminal record. He unsuccessfully challenged this entry by lodging objections at the Federal Office of Justice and the Federal Ministry of Justice, and claimed severe deficiencies of the Spanish fast-track proceedings leading to his conviction with respect to the rule of law. His application for a court decision also remained unsuccessful. The complainant primarily claims a violation of his general right of personality (Art. 2.1 in conjunction with 1.1 of the Basic Law) and of the fundamental right to effective legal protection (Art. 19.4 of the Basic Law).

II.

The Federal Constitutional Court decided that the fundamental right to effective legal protection was violated.

The decision is based on the following considerations:

To meet the standard of effective legal protection the regular courts may only refrain from exhausting all possibilities to gather information under the condition that evidence is impermissible, absolutely useless, unattainable, or irrelevant for the decision. In contrast, the courts may not abstain from taking evidence if clearing up seems especially effortful or time-consuming. The challenged order does not meet these requirements. The fact that the courts refrained from taking evidence with regard to the proceedings resulting in the conviction constitutes a violation of the fundamental right to effective legal protection under Art. 19.4 of the Basic Law, as the requirement of adequate fact finding were not fulfilled. The complainant submitted a conclusive, consistent, precise and detailed statement of why the judgment deviates from the factual circumstances, and also offered proof. Against this background, there was cause for taking evidence because the facts to be proven were relevant for the decision and because the evidence was suitable and also attainable. Even if the trial court could, in principle, assume that the Spanish criminal sentence was correct, the substantiated submission gave reason to taking the offered evidence. The presumption that the Spanish conviction was correct must have been shaken by the complainant’s submission and offer of evidence. Therefore, the trial court was obliged to further investigate the facts of the case. Generally indicating the presumption of a correct Spanish decision does not meet the standards of a conclusive investigation of facts set forth above.

Furthermore, the trial court violated the complainant’s fundamental right to effective legal protection by not following up on the complainant’s critique of the legal design and the practical use of the Spanish fast-track proceedings, and by not clarifying the theoretical, formal concept nor the practical use of the fast-track proceedings.

In addition, the trial court also violated the prohibition of arbitrariness pursuant to Art. 3.1 of the Basic Law because the evaluation of the complainant’s submission is incomprehensible.